190 | PRACTITIONERS GUIDE No. 6tion centre had a special wing for the accommodation of families, thechildren’s particular situation was not examined and the authorities didnot verify that the placement in administrative detention was a measureof last resort for which no alternative was available. The Court thus[found] that the [. . .] system did not sufficiently protect their right toliberty”. 704 In the case Yoh-Ekale Mwanje v. Belgium, the Court foundthat the detention of a woman affected by AIDS that did not presentparticular risks of flight was arbitrary because the authorities had notcontemplated the resort to less intrusive alternatives to detention, suchas a temporary residence permit. 705a) Justification of detention of childrenDetention of children raises particular considerations under the CRC, aswell as under international refugee law and international human rightslaw generally.The CRC provides in Article 37(b) that detention of a child should be onlyas a last resort and for the shortest appropriate period of time. Article 37should be read in light of other provisions of the CRC which affect decision-makingregarding migrant children. Of significance in all cases wheredetention of child migrants is considered is Article 3.1 CRC which requiresthat the best interests of the child should be a primary consideration inall actions concerning children. Under Article 22.1 CRC, States must takeall appropriate measures to ensure that a child refugee or asylum seekershall receive appropriate protection and humanitarian assistance, a provisionwhich could have consequences for decisions on whether to detaina child. For child migrants who accompany their parents or other adults,and who may risk imprisonment as a result, Article 2.2 CRC is relevant.It provides: “States Parties shall take all appropriate measures to ensurethat the child is protected against all forms of discrimination or punishmenton the basis of the status, activities, expressed opinions, or beliefsof the child’s parents, legal guardians, or family members.” Similar provisionis made in Article 24 ICCPR, and Article 19 ACHR. Also of potentialsignificance is Article 39 CRC, which requires States to take measures toensure the physical and psychological recovery and social reintegrationof child victims of armed conflict, torture or inhuman or degrading treatment,neglect, exploitation or abuse.The Committee on the Rights of the Child, in General CommentNo. 6 (2005) 706 has provided guidance on the application of Article 37(b)CRC to migrant children.704 Popov v. France, ECtHR, Applications Nos. 39472/07 and 39474/07, Judgment of 19 January2012, para. 91.705 Yoh-Ekale Mwanje v. Belgium, ECtHR, op. cit., fn. 412, para. 124.706 CRC, General Comment No. 6, op. cit., fn. 138, para. 61.
MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 191The Committee has stated that “unaccompanied or separated childrenshould not, as a general rule, be detained. Detention cannot be justifiedsolely on the basis of the child being unaccompanied or separated, oron their migratory or residence status, or lack thereof. Where detentionis exceptionally justified for other reasons, it shall . . . only be used as ameasure of last resort and for the shortest appropriate period of time.In consequence, all efforts, including acceleration of relevant processes,should be made to allow for the immediate release of unaccompanied orseparated children from detention and their placement in other forms ofappropriate accommodation.” 707Where children are held in immigration detention contrary to their bestinterests, the Human Rights Committee has considered that such detentionmay be arbitrary in violation of Article 9.1 ICCPR. It may alsoviolate Article 24 ICCPR, which guarantees the rights of the child tomeasures of protection required by his or her status as a minor, withoutdiscrimination. In Bakhtiyari v. Australia, the Committee held thatmandatory immigration detention of an Afghan refugee with five childrenfor two years and eight months constituted arbitrary detention 708as well as a violation of Article 24.1 ICCPR since the measures had notbeen guided by the best interests of the children. 709 However, detentionof a minor does not necessarily violate Article 24 of the Covenant,and may be justified in exceptional circumstances. In Samba Jallohv. the Netherlands the Committee held that detention of a minor wasjustified “where there were doubts as to the author’s identity, wherehe had attempted to evade expulsion before, where there were reasonableprospects for his expulsion, and where an identity investigationwas still ongoing”. 710The European Court of Human Rights has ruled that States must takeinto account their obligations under Articles 3 and 37 CRC in the implementationof their duties under the European Convention on HumanRights. Following this line, the Court has determined that, when decisionson detention involve children, the best interest of the child(Article 3 CRC) and the provisions of the Convention on the Rights of theChild on detention (Article 37 CRC) require that State authorities considerany alternatives to detention before resorting to this measure in707 Ibid., para. 61. See also, Concluding Observations on Australia, CRC, UN Doc.CRC/C/15/Add.268, 20 October 2005: ”the Committee remains concerned that children whoare unlawfully in Australian territory are still automatically placed in administrative detention—ofwhatever form—until their situation is assessed. [...] the Committee is seriouslyconcerned that [...] administrative detention is not always used as a measure of last resortand for the shortest appropriate period of time.”708 Bakhtiyari v. Australia, CCPR, op. cit., fn. 685, para. 9.3.709 Ibid., para. 9.6.710 Samba Jalloh v. the Netherlands, CCPR, op. cit., fn. 656, para. 8.2.